Daniel
I. Smulow (Argued) United States Department of Justice Office
of Immigration Litigation Counsel for Respondent

Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.

OPINION

RENDELL, Circuit Judge.

The
Board of Immigration Appeals ("Board") found that
Joshim Uddin, a citizen and native of Bangladesh, was
ineligible for withholding of removal because he was a member
of the Bangladesh National Party ("BNP"), a major
political party in his homeland. According to the Board, the
BNP qualified as a Tier III terrorist organization under the
Immigration and Naturalization Act ("INA"), 8
U.S.C. § 1182(a)(3)(B)(vi)(III). Thus, Uddin's
membership in the BNP rendered him ineligible for relief.

While
we will deny the petition for review challenging the
Board's ruling dismissing Uddin's Convention Against
Torture ("CAT") claim, we will grant the petition
in part and remand on his withholding of removal claim. The
Board has pointed to terrorist acts by BNP members. But it
did not find that BNP leadership authorized any of the
terrorist activity committed by party members. Today, we join
the reasoning of the Seventh Circuit and the Board in many of
its own opinions by holding as follows: unless the agency
finds that party leaders authorized terrorist activity
committed by its members, an entity such as the BNP cannot be
deemed a Tier III terrorist organization.

I.
Statutory Background

The
so-called "terrorism bar" precludes aliens who are
members of "terrorist organizations" from seeking
several forms of relief, including withholding of removal.
See 8 U.S.C. §§ 1182(a)(3)(B)(i), (vi);
1227(a)(4)(B); 1158(b)(2)(A)(v); 1231(b)(3)(B)(iv).

The
INA, in turn, establishes three different kinds of terrorist
organizations.

Tier
I terrorist organizations are officially listed
groups designated by the Secretary of State. 8 U.S.C.
§§ 1182(a)(3)(B)(vi)(I) & 1189. Such groups are
maintained on an official register, and are thus easily
identifiable to immigration authorities.

Tier
II terrorist organizations are groups that have
engaged in terrorist activity, and are designated by the
Secretary of State in consultation with or upon the request
of the Attorney General or the Secretary of Homeland
Security, for purposes of immigration exclusion. 8 U.S.C.
§ 1182(a)(3)(B)(vi)(II). Such groups are maintained on
an official register, and are thus also easily identifiable
to immigration authorities.

Tier
III terrorist organizations, the groups at issue in
this case, are groups "of two or more individuals,
whether organized or not, which engage[] in, or [have] a
subgroup which engages in, " terrorist activity. 8
U.S.C. § 1182(a)(3)(B)(vi)(III). Terrorist activity is
defined broadly by the statute as conduct "unlawful
under the laws of the place where it is committed (or which,
if it had been committed in the United States, would be
unlawful under the laws of the United States or any
State)" and which involves one of several enumerated
actions, including the "highjacking or sabotage of any
conveyance, " "an assassination, " use of any
"biological agent, chemical agent, or nuclear weapon or
device, or [ ] explosive, firearm, or other weapon or
dangerous device (other than for mere personal monetary
gain), with intent to endanger, directly or indirectly, the
safety of one or more individuals or to cause substantial
damage to property, " or a "threat, attempt, or
conspiracy to" commit such acts. 8 U.S.C. §
1182(a)(3)(B)(iii).

There
is no official register of Tier III organizations; instead,
groups are adjudicated as Tier III organizations on a
case-by-case basis.

A.
Assessing Tier III Status

There
is relatively little guidance from Courts of Appeals as to
how to determine whether an organization is a Tier III
terrorist group. But, from a procedural standpoint,
departmental regulations set forth a burden-shifting
structure for adjudicating such cases. First, the Government
must introduce evidence "indicat[ing]" that a group
qualifies as a Tier III terrorist organization. Then, the
burden shifts to the applicant to prove "by a
preponderance of the evidence" that the bar does not
apply. 8 C.F.R. § 1208.16(d)(2).

If an
alien is deemed a member of a Tier III organization, then he
can avoid the terrorism bar if he can "demonstrate by
clear and convincing evidence that [he] did not know, and
should not reasonably have known, that the organization was a
terrorist organization." 8 U.S.C. §
1182(a)(3)(B)(i)(VI).

II.
Factual Background

A.
Events in Bangladesh

The
BNP, led by Khaleda Zia since 1984, is one of
Bangladesh's two major political parties; the other is
the Awami League (AL). Both groups have been in and out of
power over the past several decades: From 2001 to 2006, the
BNP was in power. From approximately 2006-2008, a
military-backed government ruled the country to oversee free
and fair elections. In late 2008, the AL won a decisive
victory to lead the country. In January 2014, the most recent
election, the AL maintained its hold on power, despite
significant protests and demonstrations by the BNP as to the
election's fairness.

Uddin
joined the BNP in February 2008, when the group was no longer
in power. Soon after, he was promoted to general secretary
for his district. In this position, he distributed posters
and recruited college students.

Uddin
claims that on several occasions, members of the AL
persecuted him on account of his political beliefs. First, he
asserts that on December 1, 2008, ten members of the AL
approached him while he was hanging BNP posters with
colleagues. When he refused to stop hanging posters, the AL
members allegedly beat him, resulting in injuries to his face
that a doctor treated with stitches.

Second,
he claims that in March 2009, AL members broke his leg with a
hockey stick.[1] Third, Uddin asserted that AL members
threatened to kill him in October 2009 if he did not stop
working for the BNP, and that AL members threatened him again
in November and March 2010.

Finally,
Uddin alleged that on July 15, 2011, between ten and fifteen
AL members broke into to his home and burned it down. Uddin
had escaped through the back door. In October 2011, Uddin
fled Bangladesh.

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